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UKHIP’s Calais Flotilla: Donations & Evictionshttps://lawiswar.wordpress.com/2015/03/31/ukhips-calais-flotilla-donations-evictions/
https://lawiswar.wordpress.com/2015/03/31/ukhips-calais-flotilla-donations-evictions/#respondTue, 31 Mar 2015 13:08:28 +0000http://lawiswar.wordpress.com/?p=341]]>On 28th March UKHIP’s flotilla of solidarity made its way to Calais in a convoy which included a van full of donations – both given and bought with the funds raised by the crowdfunding campaign.

Spirits were high as we made our way to the coast, two months of preparation finally coming together, but in the back of my mind was the knowledge that we would soon once again confront the realities of Calais’ entrenched humanitarian crisis.

Calais is as bleak and windy as I remember. Heading to the Tioxide camp (also referred to as ‘the jungle’) at the back of an industrial estate we passed migrants wandering to and from the town, and huddled in groups with nowhere to go.

Pulling up outside the camp it was clear that something unusual was going on. People were standing on the roadside, and we were immediately asked if we were there to help. Indeed we were, but we had different ideas in mind – it was not our van load of donations, but an empty van that was sorely needed. After the initial confusion dissipated, it became clear that it was moving day: the camp was being largely abandoned in advance of impending evictions, which could start as early as 1st April. Evictions can be violent affairs, with residents’ limited property heartlessly destroyed in the process. It’s best to go before being pushed. The scale of the move took those volunteering at the camps by surprise and camp life’s daily struggle took on new urgency. The lingering air of desperation that circles the camps was pushed to the fore, and tensions were running high.

So, distribution would have to wait. With our donations stored elsewhere we set about moving people’s meagre possessions down the road to the new camp. Only a couple of miles down the road, this camp was hugely exposed to the elements (Calais is one of the windiest placed I’ve ever been) and is rocky, sandy and muddy.

This pre-emptive exodus was being conducted under the watchful eyes of the local motorbike club across the road, whose members stood imposingly at the entrance, staring at the camp’s activity scornfully. Local police cars were present in various numbers throughout the afternoon, as were vans of gendarmes, who rolled by slowly, filming and taking note of vehicles present (our van was chosen for a search as we entered the port).

As if the situation wasn’t dire enough, those living at Tioxide were now being forced to drag their minimal possessions down the road in front of representatives of the institution which assaults their numbers and of the country which resents their existence and ignores their needs. But they were not alone; many people had turned up with vehicles to help make this painful process less painful. I took heart in that, it was solidarity made real.

On seeing our British number plates and learning that we were from London everyone we spoke to told us that England was wonderful and that they wanted to get to London. It broke my heart. England is not a friendly place for immigrants, regardless of their reason for arriving on our shores. And with the camps not receiving political sanction, those living in Calais are not seen as ‘genuine’, ‘worthy’ refugees – and they face the ire of large swathes of the British public.

But the spectre of colonialism is strong. We invaded countries, interrupted cultures and told the world that the English way of life is the pinnacle. We did this not because we needed to, but out of self-interest. And now, when those who have travelled to Calais need us – really need our protection – our borders become fortresses. But who am I to tell the man sat next to me in the van of all this, when hope is all he has? Hope that things will get better – if only he can make it across that stretch of sea.

And amongst this, a scheduled cricket match was going ahead. Brand new cricket whites set against the backdrop of a deserted refugee camp; life continues. We all deserve to play cricket on a Saturday afternoon (those escaping war and violence more than most) – not to be dragging wooden pallets down the road under the threat of police violence.

The new camp is near to the newly opened Jules Ferry centre, a day centre miles out of the town which provides one meal a day to a percentage of those who need it. It appears to serve a dual purpose – to present France as doing something positive to improve the crisis on its doorstep after having come under fire recently by Human Rights Watch, amongst others, while simultaneously pushing the migrants out of town and far from the port – thereby appeasing local residents’ concerns over presence of migrants in the town and political pressure from the UK to curb numbers of stowaways. It is a cynical move which does nothing to rectify the situation or support those whose lives are hanging by a thread. In fact it makes it worse: out of sight, out of mind.

Saturday was exhausting, but it was just one day in my life. I was able to show my British passport at the border control and go home to a world of security and peace. For so many others, the border is violent and dismissive. As we waited for the ferry it began to rain and the wind shook the van. I cried then, thinking of the people we’d just met putting up their tents in that weather, on scrubland and sand dunes.

Two of our group helped a 16 year old boy move his possessions, all his family are dead and he is alone, trying to make the crossing to England to forge a life for himself. We gave a lift to someone who had been in Calais throughout the bitter winter, trying to get to England for six months. These are the faces behind the faceless banners of ‘immigrant’ and ‘asylum seeker’; these are real people fleeing real violence, with real needs and wishes. They had met us with smiles and handshakes, and I was humbled, ashamed and inspired in equal measure.

We are revelling in self-congratulation over the Magna Carta’s 800th birthday, but we are shamefully letting down our fellow human beings in denying them two central tenets of human rights: freedom from fear and freedom from want.

By a 4:1 majority the Court allowed the Met’s appeal against the 2013 Court of Appeal decision which had said that the retention of intelligence records on John Catt (a veteran peace protestor suspected of no criminal activity) on the National Domestic Extremism Database breached his privacy rights under Article 8 of the European Convention on Human Rights.

The Supreme Court unanimously rejected the Met’s arguments that the records did not engage or interfere with privacy rights at all, and instead agreed with jurisprudence from the European Court that privacy will be interfered with wherever there is a systematic retention of information, even when that information is publicly available. However the majority deemed the interference to be in accordance with the law and proportionate.

The Court appears to have accepted a sanitised view of how intelligence is obtained and what can be done with it. Lord Sumption claims that “no intrusive techniques” are used by officers to obtain intelligence, that inclusion on the database would “not be regarded as discreditable” and “not used for political purposes or for any kind of victimisation of dissidents”, that information “is not available to potential employers or other outside interests” and that “the material is periodically reviewed for retention or deletion according to rational and proportionate criteria.” [20, 26, 27]

In reality we know that protestors are hounded and intimidated by FIT officers. Many have reported being goaded by officers with personal information that they know about them such as their names and where they live. Others have had photographers following them continuously for hours on end as they go about their day to day business. It is difficult to see how these tactics could not be considered intrusive.

It is also public knowledge that police officers from NETCU (a sister-unit of the NPOIU, itself a predecessor of the NDEDIU which now manages the Domestic Extremism Database) colluded with the Consulting Association to create a blacklist of construction workers who were categorically and deliberately denied work due to their involvement in trade unions. This is a very real example of how police information can be (and in fact was) disclosed to others without regard for the law and with disastrous consequences for those concerned. Late last year it also emerged that the parents of a student activist were contacted by police officers involved in the ‘Prevent’ programme, apparently because they had concerns he was becoming involved in domestic extremism. It is not unreasonable to suggest that it is only a matter of time before we see the intelligence on protestors being ‘put to full use’ by police; this is a bleak prospect in an age in which dissent continues to be attacked by the state from all fronts.

Lord Sumption also rejected the notion that the database was a ‘secret’ one, simply on the grounds that the retention of information on it is subject to the publicly available MoPI Code of Practice and guidance, and that anyone can request data held on them via subject access request under the Data Protection Act.[28] In reality the MoPI code and guidance make absolutely no reference to the database specifically- they provide general guidance on the management of police information obtained in a huge range of circumstances- so quite how they offer any clues as to the existence of the database is unclear. Furthermore, Netpol has found and reported that police are obstructive and more often than not fail to comply with subject access requests, so the DPA can hardly be said to provide ‘robust oversight’.

He also uses the somewhat circular argument that the “existence of specialised police units dealing with political demonstrations which are thought liable to degenerate into criminality is widely known” and “has never been concealed from those who wish to know”. [28] If the existence of the database can be said to be ‘widely known’ today (and that is in itself debatable) it is only through the efforts of determined investigative journalism, and a handful of high-profile legal actions against the police (including this one). Even if there is no official policy of secrecy around the database, the police have certainly made efforts to hide its existence– for example during Wood v MPC (2009) (the first case which challenged the activities of Forward Intelligence Teams) police initially submitted to the Court that there was no database of individuals which could be searched through by name. However midway through proceedings an article was published in the Guardian proved this to be false, forcing the police to change their official position.

The inevitable conclusion from all of this is that the police simply cannot be trusted to operate in the manner in which they claim. Yet the Supreme Court decision ignores this.

Lady Hale disappointingly went as far as to suggest that:

“study[ing] the leadership, organisation, tactics and methods of protest groups which have been persistently associated with violence … enables the police to concentrate their resources on those campaigns and demonstrations where disorder can be predicted, while enabling the great majority of demonstrations to take place without an over-bearing police presence. Demonstration-based reports containing the names of the people taking part, even those who have not committed any criminal offences … can indeed be said to facilitate rather than impede the right of peaceful protest in a democratic society. There is absolutely no reason to believe that this information will be passed on to others to whom it should not be revealed or used to victimise people like Mr Catt.” [52]

She did however concede that had Mr. Catt been a ‘nominal’ record (rather than a supposedly incidental one) this would have been a disproportionate interference due to the “potentially chilling effect upon the right to engage in peaceful public protest.” [51]

Lord Toulson in the sole dissenting opinion found the interference with the right to privacy to be disproportionate. He pointed out that whilst most of the records related to Mr. Catt’s attendance at ‘Smash EDO’ protests, many were taken at comparatively innocuous events such as a TUC conference– and asserted that the police had offered no explanation as to why it was necessary or proportionate to hold those records.

He concluded in stark opposition to the majority:

“One might question why it really matters, if there is no risk of the police making inappropriate disclosure of the information to others. It matters because in modern society the state has very extensive powers of keeping records on its citizens. If a citizen’s activities are lawful, they should be free from the state keeping a record of them unless, and then only for as long as, such a record really needs to be kept in the public interest.” [69]

The ruling signals a green light for the surveillance of activists, which rather than being tightened up now falls within the vast discretion of the police. The Court has paradoxically ruled that being placed on the database will interfere with privacy rights, but then interpreted the requirement of proportionality so widely that it effectively renders the right to privacy in this context meaningless. If the police have not overstepped the mark by targeting individuals they believe to be entirely innocent, then where exactly is that mark? How can it ever be overstepped? (See Netpol’s excellent analysis of the ruling, which examines how this could affect a completely peaceful community-run campaign against fracking.)

John Catt has indicated that he will take the case to the European Court of Human Rights – historically the court has been far stricter on the requirement of accordance with the law and therefore far less willing to allow the state wide discretionary powers where privacy and surveillance are concerned, resulting in a series of rulings against the UK – see Malone v UK (1984), Hewitt v UK (1992), Liberty & Others v UK (2008), S & Marper (2009) (though a notable exception is Kennedy v UK (2010) in which, rather like in this case, the Court took the State’s assertions about oversight and regulation at face value, ignoring the reality.) It will be several years before the case reaches the court but perhaps finally then will there be meaningful safeguards against indiscriminate mass surveillance of political activists.

Until then it is very possible that activists will see a marked increase in forward intelligence and evidence gatherer teams at protests.

]]>https://lawiswar.wordpress.com/2015/03/06/supreme-courts-catt-judgment-ignores-reality-of-surveillance-and-seriously-undermines-privacy-protest-rights/feed/0jagb88Police intelligence obsession ignores law and balks at accountabilityhttps://lawiswar.wordpress.com/2015/02/05/police-intelligence-obsession-ignores-law-and-balks-at-accountability/
https://lawiswar.wordpress.com/2015/02/05/police-intelligence-obsession-ignores-law-and-balks-at-accountability/#respondThu, 05 Feb 2015 00:10:44 +0000http://lawiswar.wordpress.com/?p=326]]>Three issues have come to light over the last few days which raise yet more concerns around police operations, privacy and freedom of expression. All three have a common theme in that they all show the police’s willingness to flout the law and desire to actively obstruct those who challenge their unlawful actions.

1. Innocence is irrelevant

On Tuesday it emerged that police forces across the country have been assembling a vast database of custody photographs (‘mugshots’) to be linked with facial recognition software. The database – which was set up by police without the knowledge of the Independent Biometrics Commissioner or Home Office – reportedly holds some 18 million photographs and even includes individuals who were acquitted or never even charged with an offence.

The existence of such a database which does not discriminate between convicted and innocent individuals appears to flout the ruling of the High Court in RMC & FJ v Commissioner of Police for the Metropolis [2012]. In that case two individuals who had been arrested but had all charges dropped took legal action against the police on Article 8 (right to respect for private life) grounds in order to have their custody photographs removed from police records. The Commissioner argued that they were being retained in accordance with the law under s.64A PACE and the Management of Police Information (‘MoPI’) code of practice and guidance – which states that records should be kept for a blanket minimum of six years before deletion is considered.

Lord Justice Richards found that in relation to custody photographs the MoPI code of practice was deficient in a number of respects:

There was “no adequate distinction” between individuals who were convicted, not charged, and acquitted – this raised concerns around “the risk of stigmatisation of those entitled to the presumption of innocence, or the perception that they are not being treated as innocent…”

The retention period was “on any view a long period (a minimum of six years) and likely to be much longer…”

Retention of unconvicted persons’ data could be particularly harmful in cases of minors [54]

He concluded that the policy did not “strike a fair balance between the competing public and private interests and meet the requirements of proportionality” and that the retention of the photos therefore amounted to an unjustified interference with the claimants’ Article 8 rights. However instead of ordering the immediate destruction of the photographs, he granted the police a “reasonable time” in which to come up with a new, more proportionate policy- warning that this should happen within the space of “months, not years” [58]

The existence of this vast new database demonstrates that the police have ignored the ruling and taken no such action; this is confirmed by the Biometrics Commissioner Alastair MacGregor QC in his 2014 annual report in which he states (p.105) that:

“although more than two years have passed since judgment was given in that case – it would appear that no ‘revised policy’ has in fact been brought into existence as regards the retention of custody photographs and that many (and perhaps most) police forces in England and Wales continue to follow a policy of retaining almost all custody photographs for an indefinite period regardless of whether the individuals concerned have or have not been convicted of an offence.”

Chief Constable Mike Barton defiantly declared on BBC Newsnight that he was “unashamed” about keeping the photographs of unconvicted people on the database. Sir Bernard Hogan-Howe told the BBC that the Met have stopped adding images to the database “until the law has been clarified” – bizarrely commenting:

“are we keeping images of people who aren’t convicted, and are we using them? …I don’t think this is against the law but of course we always want to catch criminals.”

As it stands, it seems clear that the practice is very much against the law. Perhaps by further legal clarification he is referring to the Supreme Court’s impending judgment in the Catt v ACPO case? This however would be inconsistent with the position taken by police lawyers who argued that in the circumstances in Catt the RMC & FJ decision should be distinguished.

The stance taken by the police demonstrates an ongoing obsession with intelligence which runs roughshod over the rights of those who are caught up in the dragnet. This particular story caught on amongst the mainstream media leading to a slightly more-lively-than-usual political response. Lib Dem MP David Laws commented that he was “alarmed [the database] has been brought into operation without any public consultation or parliamentary debate.” Presumably he, along with most other politicians and journalists, would be surprised to learn that this is in fact just the latest in a series of revelations about secret police databases. The domestic extremism database and trade union blacklisting sagas unfortunately remain in relative obscurity despite having been revealed years ago, and by all rights should have prompted widespread outrage among politicians and the media.

2. Journalists are domestic extremists too

A public lecture held last week by the Haldane Society of Socialist Lawyers highlighted how journalists were being systematically targeted for surveillance and being designated as ‘domestic extremists’ along with the protestors whom they document in a professional capacity. (A video of the lecture is available here).

Journalists Jess Hurd and Jason Parkinson discussed how after months of denials and obstruction by police, subject access requests revealed that vast amounts of detailed intelligence on them and fellow journalists had been gathered by forward intelligence police, in some cases spanning decades and effectively entire journalistic careers. They appear to have been targeted for no reason other than their coverage of political protests and exposure of police wrongdoing; much like John Catt, none are suspected of having committed any criminal offence. Jason Parkinson recounted that his intelligence records specifically (and mistakenly) identified him as XLW (‘extreme left wing’). It is widely accepted that a free press is the lifeblood of a healthy democracy. Journalists must be able to perform their work without fear of intimidation or censure by the state. How then can it possibly be justifiable for police to target them in this way?

Shamik Dutta, the solicitor who represents John Catt as well as a group of six journalists bringing a claim against the police on the same basis, pointed out that a huge amount rides on the impending Supreme Court judgment in Catt. Police have argued not simply that the storing of intelligence on those who are suspected of no crime is lawful, necessary and proportionate in the circumstances; they have gone as far as to say that the storing of that intelligence does not even engage Article 8 privacy rights at all. If successful on this point the issue of who is and isn’t a ‘domestic extremist’ would then become redundant – the police would essentially be granted a ‘carte blanche’ by which the surveillance of absolutely everyone – no matter how innocent – will be fair game.

3. Information flows one way only

A final point which underscores the police’s contempt for those who seek to hold them to account is the news that the Met yesterday refused to comply with a Freedom of Information request from the Press Gazette on the grounds that it was “vexatious” under s.14(1) Freedom of Information Act 2000, suggesting that the request was “annoying or disruptive or which [may] have a disproportionate impact…”. It was the sixth request the Press Gazette had made since September, as it was investigating how police had abused their self-authorised powers under RIPA 2000 in order to obtain communications data which could reveal journalists’ sources – a practice which again shows a serious disregard for traditional notions of press freedom.

Jon Baines’ post on his excellent Information Rights and Wrongs blog discusses how “vexatious” is to be interpreted; the matter is being considered by the Court of Appeal, though it seems fairly safe to assume that in the vast majority of circumstances a request from investigative journalists into a matter of considerable public importance cannot rightly be dismissed in this manner. The decision will be something of a PR disaster for the police whose operations are currently steeped in controversy. The decision has betrayed a sense of entitlement to everybody else’s data whilst refusing to give away anything about their own legally dubious operations to the public.

On the issue of RIPA and journalists’s sources, the Interception of Communications Commissioner (‘IOCCO’) today issued its timely recommendations on the matter. The IOCCO has concluded that, due to the complexities inherent in weighing up Article 10 rights, the power to grant authorisations in these circumstances should be entrusted to a judge, rather than allowing police to self-authorise as they currently do. The change will require legislation by Parliament – perhaps in this case the police will be more willing to comply. In either case they would do well to bear in mind David Laws MP’s comments which summed up the database debacle and wider issues around it fairly well:

“There is a mind-set here, which is flawed…It’s quite understandable, police always want more powers, but I’m afraid the courts and parliament say there are limits.”

Thanks to Shamik Dutta for clarifying a couple of points.

]]>https://lawiswar.wordpress.com/2015/02/05/police-intelligence-obsession-ignores-law-and-balks-at-accountability/feed/0jagb88Life in the ‘Jungles’ of Calaishttps://lawiswar.wordpress.com/2015/02/02/life-in-the-jungles-of-calais/
https://lawiswar.wordpress.com/2015/02/02/life-in-the-jungles-of-calais/#commentsMon, 02 Feb 2015 17:35:04 +0000http://lawiswar.wordpress.com/?p=309]]>Yesterday, myself and five others got up early, left our homes and made our way to Calais. Unlike many others making this trip from the UK, we were not on a booze cruise or European road trip. Instead, we were travelling with all the warm winter donations we could squeeze into six backpacks and heading for the migrant camps of Calais.

The trip was inspired by David Charles and Beth Granville’s “Thank-You Letter to the Daily Mail”, which called for a “D-Day-style flotilla of solidarity” with the Calais migrants, courtesy of the Daily Mail’s £1 P&O ferry promotion.
But, while I am proud of us for gathering donations and travelling to France, our small act of solidarity is not the story here.

The story is that more than two thousand people, mostly fleeing conflicts in Africa and the Middle East, are being forced to live in horrendous conditions, not in a war-torn corner of the globe, but in the heart of Western Europe. The story is that we too, through our tacit support for our government, are complicit in this tragedy.

Life in Calais

We reached the Tioxide Camp after a long, depressing walk through barren concrete landscapes. This camp is home to as many as a thousand people, mostly from Eritrea and Ethiopia. It is centred around a former gymnasium and two incongruous basketball rings hang above row upon row of cheap tents, the sort you see abandoned at the end of music festivals in the UK. There are hundreds more such tents outside the court; the most luxurious are raised on hard wooden pallets to keep the occupants off the frozen ground.

When the site was taken, there had been water and electricity, but that has long since been cut off by the landowner. Now there is just one water source, across the road from the Tioxide Camp and shared with another ‘jungle’ of mostly Afghan migrants.

We were met, at first with some apprehension, but then with smiles, handshakes and invitations. Donations were dealt out in a flurry – gloves and dominoes were snapped up eagerly, shoes tried on, socks and jumpers claimed, and an issue of STRIKE! passed around.

We were welcomed to sit in the corner with a small group, while an Italian woman who has been coming to Calais since 2009 played the guitar and sang Buffalo Soldier by Bob Marley. It was a beautiful bubble of simplicity within a complicated, foreign situation. As the music ended, I was acutely aware that soon we would leave Tioxide and travel back to the city where so many of these men are desperate to go.

After leaving the camp, we walked again down desolate roads, hemmed in by huge grey fences, towards the town. We were silenced by what we had seen. I walked a few steps ahead for a moment as I fought back tears. Then we began to plan further trips, more organised and on a larger scale. We were walking away from the camp, but none of us were willing to walk away for good.

A police van drove by, slowing as it passed, scrutinising our appearance. The only vehicle on the road, it provided a stark reminder of the day-to-day reality of these migrants’ lives. They want only to leave Calais and make the most of their lives, but are instead tormented and scapegoated by governments on both sides of the Channel. They are grateful for a day without arrest, pepper spray, beatings – or death.

Our last moments in France were spent on a shuttle bus on the way to the ferry port. A small team of police with two dogs were patrolling a row of parked lorries. As the dogs began snarling and leaping at one of the lorries, my heart sank. I wondered if someone’s attempt to cross had been thwarted – and what awaited them if it had.

In my pocket was a small booklet, my photo and personal details printed on its pages. That small booklet was given to me because of where I was born. It allows me to pass into almost any country in the world without molestation. That same coincidence of birth, commemorated in the gold stamp on my booklet’s cover, affords me a standard of living that would be considered luxurious by most of the world’s residents.

Why do we accept, in our silence, this inequality?

Supporting the Migrants

Unfortunately, the Daily Mail offer is now finished, but ferries to Calais remain relatively inexpensive. Anyone wishing to travel to Calais should contact Calais Migrant Solidarity beforehand. They have a great deal of information on their website and can tell you what items will be of the greatest benefit to the migrants in Calais.

If you are not able to travel to Calais yourself, you can help by sharing the truth about the migrants there. We must counter the dominant alienating narrative perpetuated, in part, through publications such as the Daily Mail. No one should be subjected to this treatment. It is unacceptable and must not be swept from view or used as a scapegoat for the political failings of the ruling class.

Calais is on our doorstep, and we cannot ignore the suffering of these human beings or the complicity of our government. We are all human; let’s reconnect with humanity.

]]>https://lawiswar.wordpress.com/2015/02/02/life-in-the-jungles-of-calais/feed/1amyotterFullSizeRender (4)FullSizeRender (5)FullSizeRender (6)FullSizeRender (2)FullSizeRender (1)Cameron, Tabloids & Tyrants: Vous n’êtes pas Charliehttps://lawiswar.wordpress.com/2015/01/13/cameron-tabloids-tyrants-vous-netes-pas-charlie/
https://lawiswar.wordpress.com/2015/01/13/cameron-tabloids-tyrants-vous-netes-pas-charlie/#commentsTue, 13 Jan 2015 22:42:31 +0000http://lawiswar.wordpress.com/?p=299]]>The tragic events that took place in Paris last week have stimulated heated debate about a range of difficult issues including where the limits of freedom of expression lie and how best to tackle extremism. This post is not intended to deal comprehensively every aspect of this debate but to highlight the hypocrisy of those who have aligned themselves with the ‘je suis charlie’ diaspora whilst otherwise adopting an anti-human rights approach to policy.

It was of course incredible to hear of the reported 3.7 million people marching through the streets of France in defiance of the terrorist acts and in support of freedom of expression, but I was incredulous to learn of the presence of politicians from such oppressive regimes as Egypt, Russia and Turkey. The lineup of politicians ironically read like a who’s who of the most notorious repressers of freedom of expression. This post by Daniel Wickham provides a comprehensive rundown of some of the worst offenders – who routinely have journalists and dissenters jailed, tortured and killed – scraping the bottom of the barrel in Reporters Without Borders’ Press Freedom Index.

The presence of these characters reveals a bare-faced hypocrisy, using the march as nothing more than a public relations exercise to excuse their respective countries’ dubious human rights records, with no intention of granting their own citizens fundamental rights like freedom of expression. Reporters Without Borders warned “We must not let predators of press freedom spit on the graves of Charlie Hebdo.”

David Cameron was of course centre-stage, and whilst it would be somewhat melodramatic to compare the UK to many of the more tyrannical regimes on display it is certainly worth looking at our own political discourse. Whilst Cameron pretends to be a champion of freedom it should be remembered that the Conservatives continue to reveal an onslaught of draconian anti-privacy and anti-freedom of expression measures, which will become a reality in the event of a Tory win in May. They will repeal the Human Rights Act and potentially withdraw from the European Convention on Human Rights. Extremism Disruption Orders (see my previous post here) will see ‘extremists’- encompassing not just hate preachers and the like but also peaceful political activists- who have not even committed any criminal offence have their social media accounts and public appearances pre-emptively censored. They insist on reviving the Snoopers’ Charter, which will make it easier to obtain blanket access to electronic communications, and even plan to disregard the traditional safeguards of journalistic and legal privilege – rather than protect them from being trampled upon as they are now. Incredibly they now want to ban all methods of sending encrypted communications – which would include many of the most popular instant messaging apps on the market. Cory Doctorow explains that such a move would be technically impossible, would harm completely the wrong people, and put us in league with Syria, Russia and Iran. And even Frankie Boyle was quick to remind us what happens to those who try to exercise their freedom of expression in parliament square.

That spying on people’s communications can and will deter them from expressing themselves freely should really be a given, but this notion is being conveniently ignored. The usual cognitive dissonance leads people to believe that freedom is best defended from terrorists by cutting out the middleman and allowing the government to take it away from us, and blind faith in the State leads people to the conclusion that security is more important than liberty. These misguided attitudes, proffered by politicians and cheered on by the media, continue to be prevalent in any debate around human rights and this one is no different.

Spurred on by a renewed fear of terrorism, LBC’s premier bore Nick Ferrari has called for everyone who travels to Syria to be automatically and without any form of trial stripped of their citizenship – echoing Boris Johnson’s sentiments that he was “not bothered with this civil liberties stuff” as far as terror suspects are concerned.

The Sun cheered on surveillance by the intelligence services and our clearly outdated and unfit-for-purpose RIPA legislation – conveniently forgetting that only a couple of months ago it was complaining that police had abused that very same legislation to access the phone records of its own journalists. Like the Daily Mail, they instead decry “liberals” for having concerns about civil liberties. To do so under headlines such as “freedom fight” and “free speech is a cornerstone of our democracy” is almost beyond irony.

Tory MP David Davies somehow came to the conclusion that the attacks in Paris “show [the] need to scrap the Human Rights Act” – an argument which betrays an embarrassing ignorance as to the law, and one which was rubbished with little difficulty by Adam Wagner and Mark Elliott, who summed up particularly well:

“To the extent that the Paris shootings are relevant at all to the debate about human-rights law in the UK, their significance is not that they demonstrate that public security and human rights are incompatible. To the contrary, they stand as a stark reminder that liberal values are worth standing up for. Freedom of expression in general and freedom of the press in particular are values that were championed by the journalists and cartoonists at CharlieHebdo, and they are values enshrined in Article 10 of the ECHR and, hence, in our own Human Rights Act. To suggest that the shocking events that took place in Paris this week establish a need to repeal that legislation discloses not only an astonishing degree of legal illiteracy but a fundamental failure to appreciate what it means to live in a liberal democracy.”

Returning to those who are claiming allegiance with Charlie Hebdo – whether from within the UK or further afield – I will say this: To declare “Je suis Charlie” is not simply about being opposed to terrorism. The victims of the atrocity will be remembered as martyrs for freedom of expression and, by extension, for human rights and the wider system of values associated with those rights. It is therefore completely disingenuous for you as politicians and media institutions to align yourselves with the cause when the rest of the time you espouse entirely the opposite values. Vous n’êtes pas Charlie.

British police allegedly act under a philosophy of policing by consent (‘the police are the public and the public are the police’, as the saying goes), which encompasses a number of principles set out in General Instructions given to new officers from 1829 onwards.

In so many ways contemporary policing makes a mockery of these standards, and November’s confirmation of long-denied target setting for arrests fits the developing picture of an institution which operates on principles far removed from the public image it presents (one that the Met has spent millions of tax-payers’ money trying to convince us of, brilliantly highlighted by a recent poster campaign).

Today’s police are not the public. They increasingly demonstrate a disdain for the people they claim to represent and protect. So often, public order and political agenda trump genuine public concern, and some of society’s worst qualities (racism, bullying, laziness, corruption) seem to find expression in this arm of the state apparatus (which is of particular concern given their apparent ability to act with impunity, and when considering the increasing number of toys at their disposal).

Not only do arrest targets show flagrant disregard for the alleged values our police forces should operate under, and of the system we live within (the current state of British democracy is a whole other debate!), but they allow systems of oppression – such as racism – to perpetuate. In considering rule of law as an essential backbone to a system of governance which is fair, which respects due process, and which should be firmly at the heart of any democratic state, we can refer back to the General Instructions, which direct the police ‘to seek and preserve public favour … by constantly demonstrating absolutely impartial service to law, in complete independence of policy, and … by ready offering of individual service and friendship to all members of the public without regard to their wealth or social standing’.

Setting arrest targets, particularly talk of ‘easy wins’, places statistics over rule of law – and for what? So individual officers can impress their superiors? So police forces can make their case to be treated gently in the next round of cuts? So those in government can make pleas for votes through cooking the books on crime figures?

These are people’s lives. We are not pawns in political games; we are not numbers on spreadsheets. This practices shows no regard for the stress of arrest and detainment, and no concern for how criminalisation impacts on the lives of ordinary people. We cease to be people; we become tools for other people’s goals.

Searching for Arrests

In 2007 it was reported that police were setting arrest targets: 3 ‘sanction detections’ every fifteen weeks. Officers stated that under these conditions easy arrests, rather than arrests/tasks with greater merit, naturally became preferred. At the time, a Police Federation spokesperson said, ‘Understandably, when the public hears about this they ask ‘What the hell is going on?’’ Well, indeed.

In considering what this means in practice: stop and search powers are regularly employed as one of these ‘easy wins’ – and these powers are enacted in a far from merit-based manner. Black people in London are currently 12 times more likely than whites to get stopped under Section 60 – which removes the need for ‘reasonable suspicion’ (23 times more likely nationally in 2012). This despite the fact that drug use tends to be lower in non-white groups. (Actually, not only are black people more likely to get stopped, but in 2013 a study also found black people were subsequently more likely to get charged.) Incidents of stop and search under Section 60 fell 89% from 2011/12 – 2012/13 – this huge drop begs the question: if such a large reduction was feasible in such a short period why were they searching so many people in the first place? Easy wins. Easy wins that unnecessarily and unfairly target specific sections of our society.

‘The Metropolitan Police Service (MPS) has no policy of setting individual targets for stop and search or for arrests.’ This 2014 public denial by the Met was reiterated internally by then Assistant Commissioner, Simon Byrne. However, an email from the previous year a Met chief inspector announced monthly ‘minimum expectations’ for officers. James Patrick, Met whistle-blower, spells out why the Met was always going to deny these allegations: because evidence collected demonstrates the involvement of senior members of the force. This is no rogue unit – this is a strategic policy.

In defence of this policy (although seemingly he also denies this policy exists), Byrne states that there are no targets for bravery, of putting oneself in harm’s way. While, of course it would be all the more shocking if police were expected to put themselves in a minimum number of life-threatening situations each month, Byrne misses the point – that attention is not paid to quality policing, to actions that may actually defend those in need and support some ‘greater good’, but instead to pointless targets, to ticks on spreadsheets. And, while stop and searches may have reduced as a result of intense scrutiny and pressure, unnecessary arrests will continue in some form as long as this target culture operates.

This drive for officers to make needless arrests to meet arbitrary quotas is something retired (/reformed) Met police officer, Chris Hobbs, has raised concerns over for the very reason that it distracts from anything of meaning. A 2014 Metropolitan Police Federation report also notes that target culture can lead to fiddling the stats. Is this all the more likely when we are seeing huge cuts to police funding, as different forces compete to prove their necessity to the ‘public good’? When we see this in the light of developments, such as the rise of private prisons, the whole thing takes an even shadier turn. Last year’s conviction of an American judge for conspiring with private prisons to give young offenders maximum sentences for a kickback – while obviously an extreme case – demonstrates how wrong things can go when private business concerns become embroiled with public functions.

Time for Change, Time for Consent

And, during this period of revelation, we hear from the bullies that they are being bullied. Officers report being forced into making arrests, such as the arrest of a man in possession of egg with ‘intent to throw’, and of a child for throwing a piece of cucumber at another child.

And we are expected to sympathise. If you are not happy with the way the institution you work within operates, blow the whistle, resist, force change – you know, all the things those people you’re always arresting at protests are trying to do. If you’d stop arresting them for a minute and think about what they’re doing, maybe you could be a positive influence in an institution that has amassed too much power, is desperately lacking in transparency and accountability, and which no longer commands the consent of huge swathes of the public it claims to be part of. Looking back to the General Instructions, ‘the power of the police to fulfil their functions and duties is dependent on public approval of their existence, actions and behaviour and on their ability to secure and maintain public respect’. You need our approval, and we do not consent.

In 2013 Theresa May spoke out about the creeping return of target culture within the police (in 2010 she had called for the practice to be abolished as a method for measuring performance). Yet, it appears that it never went away, that it is more ferocious than ever, and is being denied/excused at the senior level – demonstrating that senior officers fail to see the problem with this, or indeed, are in favour of a target-led approach. The Metropolitan Police Federation’s report into target culture said this was ‘devastating’ picture of the police, and that arrest targets were draconian and meaningless. Yet, in response to the report, a spokesperson for the Met stated that they would not apologise for valuing performance, and that ‘the public expects no less’.

They’re right; we expect so much more. We expect that individuals entrusted with a monopoly on force to use that power (which is essentially the power over other people’s lives) only when necessary, and only in occasions where it is of benefit. We are encouraged to believe that we need the police, but is this really true? Can we not think of any alternatives? Such as those which would truly engage the communities they are meant to support, and which would therefore be bound by far stronger accountability mechanisms, and would be anchored within public control.

Recently, the NYPD essentially decided to stop working, and on New Year’s Eve over 80% of Rome’s police force called in sick – and yet society survived. Now is the time to think seriously about what we have and what we want – and the huge chasm that currently exists in between.

The arrest of 76 protesters following a die-in at Westfield shopping centre in London on 10th December 2014 was not just outrageous and callous, but provides one of the clearest recent cases of the state’s current determination to stamp out protest by any means necessary.

The protest, which was called by the London Black Revolutionaries, in conjunction with the NUS Black Students’ Campaign, London Campaign Against Police and State Violence and Black Activists Rising Against the Cuts, was held in solidarity with protests arising in America following the death of Eric Garner after a grand jury failed to indict the officer who put Eric in an illegal chokehold. Eric died shortly after this incident, having repeated ‘I can’t breathe’ eleven times at the scene. This judgment followed closely behind another grand jury decision not to indict the officer who fatally shot Michael Brown in Ferguson – a decision which sparked country-wide protest and worldwide uproar – and the fatal shooting of a 12 year old black child by a police officer in Cleveland on 22nd November. The UK, too, bears responsibility for a litany of black lives lost at the hands of the police, and for an over-representation of black people at every stage in the criminal justice system. This is a huge problem, an embarrassment, and a scandal.

In recognition of this problem, hundreds of people attended the protest at Westfield, which mirrored similar actions in America. Protesters used the phrase ‘Black Lives Matter’ to draw attention to this disturbing trend – most tragically demonstrated through these deaths, but also reflected in a much more insidious pattern of prejudice which continues to pervade our society. This statement of solidarity – and of shaming the police/state – follows other such phrases that previously traversed the globe via social media: #icantbreathe and #handsupdontshoot. These actions are a testament to the ingenuity of current forms of protest, which demonstrate a innate understanding of the potential for social media to draw global attention in a way that leaves governments powerless to hide wrongdoing, or to portray an image of ‘business as usual’.

Resistance Reimagined

The London Black Revs are representative of a new wave of protest in the UK: unafraid, unwavering, deeply political, and focused on direct action. This energy is capturing the imagination of younger citizens, who feel increasingly disempowered, forgotten about and derided by the current government. They are also capturing the attention and respect of other groups, academics and commentators. Intelligent and focused on serious, often complex, political issues (such as highlighting the precarious existence of black trans women, food poverty in the UK, or low conviction rates for rape), groups such as the London Black Revs are opening the eyes of their supporters, and building lines of solidarity across movements – something which is so vital for success in a contemporary environment in which numbers don’t necessarily equate to success, and in which the media/government miss no opportunity to undermine and isolate protesters.

While, obviously, not everyone protesting on 10th December was young or new to protest, there is a notable contingent of newcomers when compared to many other movements. This cohort – which also draws from a wider range of social backgrounds than often found at protests, with working class and BME groups better represented – brings young voices and black voices to the fore in a country which so often pays little heed to their needs; with little political power, they are convenient scapegoats and some of austerity’s biggest losers (along with immigrants and the disabled).

These young people may well be the next wave of individuals engaged in lifelong resistance – and, if so, it’s not hard to see why those in power are concerned. At a time in their lives where they are forming ideas about what the world they want to live in looks like, and are about to face the challenges of adulthood and/or going to higher education (where a great deal of political organising takes place), these individuals are connecting, developing ideas, and organising – disrupting the status quo rather than blindly following it. They are also experiencing first-hand how the state deals with dissenters and critics.

The issues raised by the London Black Revs and others are reaching a varied, frustrated audience, and the potential for their calls to spread and develop is vast. The government and police are placed directly in the firing line, and with little defence for their actions they will seemingly go to huge lengths to minimise the potential for these calls to proliferate.

Intelligence & Intimidation

It seems likely that the heavy-handed police response on 10th December was indeed due to the increasing threat these groups cause to the status quo. In part this response was to gather intelligence on the main organisers, and participants, from the outset, as the movement gathers momentum and before they are an established part of the protest scene (which they are fast becoming). Added to this is intimidation – another major player in the police’s repertoire. In arresting large groups of young people, and giving them bail conditions stretching months, the hope is that they will be scared away – while simultaneously also sending a message to those thinking of joining in that it’s a risky business. The offence the protesters were all arrested for – violent disorder – adds another layer to this: the offence carries a high penalty if convicted (bearing in mind that mass arrests garner barely any convictions). Violent disorder is also an offence couched in inflammatory terms which label protestors as thugs, thereby minimising public support.

However, in the face of these attempts, the protest has accrued wide media coverage, and the state has once again shown its hand as an overbearing force that’s scared of its citizens – kettling and arresting a large number of protesters (many of whom were minors) after they were lying down in a shopping centre on a protest against police brutality. It’s so ludicrous it’s almost funny – except it’s not, it’s the opposite of that. With stop and search statistics still showing systematic racism at play, with a grotesque number of deaths in police custody (over 1500 since 1990), with black lives being taken with impunity by police on both sides of the Atlantic, you’d think there would be some realisation on the state’s part that things have to change, that this is not how they and their law-enforcers should be behaving. And yet. And yet this realisation has not come, in part because accountability mechanisms for police behaviour are so porous and weak, and perhaps also because, until recently, these issues weren’t being aired in wider public forums. But we should not have to force the state that claims to represent our needs to do that very thing, they should be doing it spontaneously, as a system of governance that claims to be democratic. There is clearly something very wrong with the system we live in today – something which goes far deeper than this latest mass arrest.

This bias, this lack of respect, is not lost on today’s increasingly politicised youth. And the intimidation has not succeeded: the groups leading the protest on 10th December have immediately responded, and commenced further planning. Other groups have supported them. Links and networks grow across the Atlantic and throughout the world. Mainstream media have even lent their column inches to the cause. This growing awareness and solidarity will play a vital role in achieving admissions of wrongdoing, and in enacting change. Above all: change.

]]>https://lawiswar.wordpress.com/2015/01/04/to-arrest-and-intimidate-state-determination-to-undermine-dissent-laid-bare/feed/0amyotter‘No Comment’ – Two Big Wordshttps://lawiswar.wordpress.com/2014/12/16/no-comment-two-big-words/
https://lawiswar.wordpress.com/2014/12/16/no-comment-two-big-words/#commentsMon, 15 Dec 2014 23:51:41 +0000http://lawiswar.wordpress.com/?p=270]]>In an age of intelligence-led policing, ‘no comment’ is of fundamental importance. Police, especially insidious Police Liaison Officers, use our innate human dispensation towards communication against those who dare to dissent; orders/questions barked out by agents of the state carry with them an implied threat of punishment for refusal. This provides police with an all-too-easy strategy for gathering information on protesters, facilitating the state’s continuing determination to undermine movements and individuals which challenge its authority (or the profitability of big business, of which it is so enamoured).

But those two words are at once both a readily available tool for stopping police gathering information they have no right to within a specific situation, and something far greater – they exist on the frontline of larger and deeper resistance against a state which assumes a right to every aspect of our lives, which intimidates us into believing they deserve that right, and which reaches deep into the private lives of its citizens without their consent, or knowledge.

In a system which is increasingly imbalanced in its division of power (and which those in power wield greater power with more serious ramifications for disobedience) ‘no comment’ – a refusal to comply, a refusal to make injustice easy – is powerful. Something changes within a person when they stand up and challenge power, however minor the act may seem at the time – and understanding that police abuse their positions of power, but that they can be (successfully) challenged, is most keenly felt through lived experience, rather than simply academically.

Successfully refusing to follow an officer’s (non-mandatory) orders, or watching them squirm to get information from you in the face of a dead-pan ‘no comment’, reduces fear of the police, strips them of their implied power. They are just people – and people who on occasion do not know the law they purport to uphold (asking ‘am I legally obliged?’ can be met with blank stares). But, perhaps more disturbing than officers of the law not necessarily knowing the law, is the willingness to lie and mislead in order to prevent people exercising their rights, and to protect corporations, actions and policies that without doubt impact them, their families and their futures too.

Intimidation has become an undercurrent running through so much of today’s policing, and intelligence-gathering occupies a central role within this strategy. It is easy to fall victim to these tactics: the game is rigged. Mass arrest, undercover policing, kettling, domestic extremism lists, abuse of stop and search, lengthy police bail, excessive restrictions on protest, and criminalisation of protesters, all serve to squeeze and silence movements which oppose the unjust system that gives rise to these same injustices. The game is indeed rigged, but it is not lost. We can refuse to play. We can choose to not voluntarily surrender that which is ours: our identity.

Any attempt to level power imbalance is critical to the continuation of movements which exist within a society in which those in power assume the right to reach ever-further into our lives, and seek to control and limit us in ways entirely inconsistent with the democratic values they claim to practice. It is growing public awareness of this democratic failure which brings people out onto the streets in increasing numbers, it is continuing disrespect which will keep them coming out, and it is prevention of information-gathering practices which will keep the doors open for more to join in the future.

Catt v Association of Chief Police Officers was brought by peace protestor John Catt, who upon submitting a subject access request to police discovered that they had been keeping detailed records of his activities on the National Domestic Extremism Database. His file contained details about his attendance at ‘Smash EDO’ demonstrations, including detailed descriptions about his appearance (such as slogans on his t-shirt) and behaviour (he enjoyed sketching the scene at demonstrations), as well as a photograph though this had been subsequently deleted. The police conceded that he had no history of criminal activity and was not even suspected of having committed any wrongdoing.

Mr Catt argued that this was a breach of his right to privacy under article 8 ECHR and that the records should be deleted. He lost at the Divisional Court but was successful at the Court of Appeal in 2013. The police appealed this decision and this is now the first time that the Supreme Court will be dealing with the issue. The judgment will set an important precedent as to how widely the police can monitor and profile the activities of political protestors. To date, police have refused to offer any real guidance on how this type of surveillance operates, and have not published any written policies or procedures detailing who can be included on their databases and for what reasons. A dismissal of the police’s appeal will send a strong signal that they must change the way they do things – eg. by limiting the scope of who can be monitored and/or by publishing a manual of guidance which provides clarity. However if the appeal is successful it will be a vindication of current surveillance practices.

The Catt case is one of just three that have gone before the English courts arising from the use of police forward intelligence teams. In this hopefully not too lengthy post I aim to set out in a somewhat dispassionate manner the current state of play in terms of how the courts have ruled on the activities of FITs and the article 8 right to privacy. Of course the Supreme Court, being the highest court of England & Wales, will not be bound by the following decisions; nor is it bound by the decisions of the European Court of Human Rights – (it is only required to ‘take them into account’ under s.2 Human Rights Act 1998 – something which the Conservative Party would do well to note), but this should hopefully provide an interesting background to the appeal.

Article 8 ECHR Framework:

First for the uninitiated- a quick note on how a claim under article 8 works. Art.8 is of course a qualified right, meaning that the state can lawfully interfere with it in certain circumstances.

The claimant must first show that:

His/her rights under article 8 are engaged (ie that this is a situation in which they are in play), and

there has been an interference with those rights.

It then falls to the state to show that the interference was:

in pursuit of a legitimate aim (ie the prevention of crime or protection of the rights of others – this is easily satisfied in practice),

in accordance with the law (ie there must be some basis in law for the interference, and that law must be of a sufficient ‘quality’ so as to ensure fairness), and

necessary and proportionate.

If the state cannot show that all 3 of the above conditions have been met the interference will be unlawful.

Andrew Wood was an activist involved in the Campaign Against the Arms Trade (CAAT). As part of a CAAT initiative he lawfully bought shares in Reed Elsevier – the corporation which hosts the DSEI trade fair for defence companies– entitling him to attend the company’s annual general meeting so that he could put ethical considerations on the agenda. He did this along with a handful of other CAAT activists, some of whom were ejected from the venue for causing a disturbance by shouting slogans (though no criminal offences were committed). Mr Wood left the meeting peacefully and of his own accord, and had no previous or pending convictions for any criminal activity.

Reed Elsevier was at the time a regular target for demonstrations due to its association with the DSEI fair and therefore police were wary of the potential for criminal activity, and were policing the event closely. Outside the shareholders’ meeting Mr Wood was spotted by FIT officers, who approached him and began photographing him and asking for his name. He refused and began walking to the nearest tube station but was followed by police who continued photographing him at close range and even attempted to get tube staff to tell them his name, causing him to feel intimidated.

The police submitted during proceedings that the purpose of the surveillance was firstly to assist in the subsequent identification of offenders if it had transpired that criminality had occurred during the AGM, and secondly to identify in advance any individuals who would go on to commit criminal offences at the DSEI trade fair, which was due to happen a few months after the event. The police also provided information on what was done with images obtained in this manner and supposed safeguards against abuse [see paragraphs 5-7]. An article in the Guardian emerged during the proceedings which revealed that the database was more sophisticated than police had previously admitted, however these revelations did not have any bearing on the outcome of this case.

Mr Wood’s claim under articles 8, 10 and 11 were unsuccessful at the High Court and he appealed to the Court of Appeal. The 3 Judges came to different conclusions, ruling by a 2 to 1 majority in favour of the appellant.

Laws LJ found that the police’s actions amounted to more than a “mere snapping of the shutter” [45], and that in the circumstances the taking of the photos, with the possibility they would be retained and used, amounted to a “sufficient intrusion by the State into the individual’s own space [and] integrity”. [46] He also noted the ruling in S & Marper v UK(2009) which said that “the mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8…”

The Court had no trouble finding that the interference was for the legitimate aims of the prevention of crime and disorder, protection of public safety and/or protection of the rights of others, due to the history of protest activity surrounding Reed Elsevier and DSEI and the police’s stated objectives in obtaining the photos.[48]

Laws LJ found that the degree of interference suffered by the appellant was ‘modest’ and as such the requirement of accordance with the law was satisfied by the general common law power which police enjoy to take photographs (Murray v UK (1994)) It was held irrelevant that police had failed to disclose their ‘Standard Operating Procedures for Use of Overt Filming/Photography’ documentation.

On the issue of proportionality, Laws LJ also found in favour of the police and therefore dismissed the appeal. The appellant had sought to rely on the ruling in S & Marper, in which the European Court of Human Rights had found that the indefinite retention of DNA samples of innocent individuals amounted to a breach of art.8. Laws LJ considered that case to be distinguishable, due to the difference in how the information would be retained (it was accepted in this case that the images would have been deleted were it not for the initiation of legal proceedings, as the photos had fulfilled their purpose.) and the “qualitative difference between photographic images on the one hand and fingerprints and DNA on the other” [59]. (It should however be noted that in the more recent case of C & J v Commissioner of Police for the Metropolis (2012) the High Court explicitly applied the principles of S & Marper to the retention of photographs taken by police on arrest of the claimants, as both types of information contain “external identification features”[33].)

However Dyson LJ pointed out that the retention by the police of photographs of individuals who were not suspected of having committed any offence “is always a serious matter.” [85] He considered that once it had become clear that no offences were committed, the justification for the retention of images falls away. He declined to rule on the issue of accordance with the law as his finding on proportionality was sufficient to render the interference unlawful.

Lord Collins also ruled in favour of the appellant, noting that he was “struck by the chilling effect on the exercise of lawful rights such a deployment would have.” [92] Like Dyson LJ he declined to rule on accordance with the law but proportionality was the key issue – in his view the police could not justify the ongoing retention of the photographs once it was established that he had not committed any offences at the AGM. He warned that there were “very serious…human rights issues which arise when the state obtains and retains the images of persons who have committed no offence and are not suspected of having committed any offence.” [100].

John Catt was the second individual to challenge FIT surveillance in the courts. The factual background has already been set out above. The Divisional Court dismissed his judicial review on the grounds that all of the information in question had been obtained in a public setting (at public demonstrations) so his article 8 rights were not engaged, and that what the police had done could not be distinguished from what a private actor such as a journalist could lawfully do. They also commented in obiter that even if his article 8 rights had been engaged the interference would have been justified.

The Court of Appeal considered closely the requirement of a ‘reasonable expectation of privacy’ – which is generally accepted as the threshold which must be crossed in order for article 8 rights to be engaged. The Court considered the Strasbourg case Segerstedt-Wiberg v Sweden (2006) – in which Swedish police had gathered information on the claimant’s political activities including his attendance at a political meeting. The information was publicly available but the Court found that it still attracted privacy rights under art.8, as it had been “…systematically collected and stored in files held by the authorities.” [11] A similar approach had been adopted in PG v UK (2001), which concerned the covert recording of the claimant’s voice so that the samples could be used for identification purposes. It had been held that “Private-life considerations may arise…once any systematic or permanent record comes into existence of such material from the public domain.”[13]

It was held that the information which police had retained (the appellant’s name, age, appearance and history of attendance at political demonstrations) was information which fell “within the scope of his personal autonomy over which he is entitled to retain control.”[31] In Kinloch v Lord Advocate (2012)the Supreme Court had ruled that when determining whether there had been an interference with article 8 rights, it was necessary to consider both “the extent of the particular intrusion into the individual’s private space and to the use made of any evidence resulting from it.”[19] In Mr. Catt’s case, the information was not evidence to support any prosecution for criminal behaviour, but merely ‘intelligence’, which by the police’s own admission was likely to be retained until the Smash EDO group ceased to function, or would possibly be retained indefinitely.[31] His privacy rights under article 8 were therefore engaged and had been interfered with.

That the interference was in pursuit of a legitimate aim was not controversial in the proceedings. The court accepted that “core members of Smash EDO are prone to violence and criminal behaviour” and that the purpose of the database was to enable forces to share intelligence on “violent protest groups” and gain a better understanding of how they operate. The database therefore fell within the legitimate aim of preventing crime and disorder and protecting the rights and freedoms of others. [35]

On accordance with the law, it was noted that the retention of information is governed by the ‘MoPI’ code of practice on the management of police information, which stipulates that information should be retained for six years before being reviewed for deletion. The Court declined to rule on this point due to their finding on proportionality but acknowledged it was “still very much a live issue given the relatively vague nature of some aspects of the regime… and the criticisms voiced by the Divisional Court in [C & J]” [45]

On the issue of proportionality the Court was “left with the clear impression that police officers who attend protests organised by Smash EDO for the purpose of gathering intelligence record the names of any persons whom they can identify, regardless of the particular nature of their participation.” [41] They also approved of Dyson LJ’s approach in Wood that an interference for the purposes of preventing terrorism or serious crime could be more readily justified than one which was only for the prevention of low-level crime. Allowing the appeal, the Court concluded:

“The systematic collection, processing and retention on a searchable database of personal information, even of a relatively routine kind, involves a significant interference with the right to respect for private life…in this case the respondent has not in our view shown that the value of the information is sufficient to justify its continued retention. It is striking that [the respondent] does not say that the information held on Mr. Catt over many years has in fact been of any assistance to the police at all.” [44]

The Divisional Court’s finding that it would be impossible to expect the police to be able to comb through their intelligence more finely in order to discard the less relevant pieces of information was rejected, with the Court reiterating that the burden of justifying any interference rests squarely with the state.

The most recent case was that of Mengesha v MPC, which I previously wrote about here. A group of around 100 protestors were ‘kettled’ during a trade union march in 2011 in order to prevent a further breach of the peace after some damage to property occurred. Protestors were eventually allowed to leave the kettle but only on the condition that they allowed themselves to be searched by police, gave their name and address, and allowed themselves to be filmed at close range by FIT photographers. The claimant had attended the demonstration in the capacity of legal observer and was caught up in the kettle. Again she claimed a breach of her article 8 rights.

Considering both the Wood and Catt decisions, the court had no difficulty in finding that article 8 was engaged in the circumstances, requiring justification by the police.[19]

This time the Court offered a definitive view that the interference was not in accordance with the law. Not only was there no statutory power to obtain the information in the first place (as this fell outside the powers conferred by s.64A PACE), but there was also no published policy on the retention of that information. The C & J case had found deficiencies in the MoPI code of practice, ruling that it did not draw a sufficient distinction between individuals who were convicted, merely charged, and acquitted, and therefore created a disproportionate interference with the claimants’ article 8 rights. This was therefore dispositive of the current case – “Since there was no statutory power to take and retain the photographs and no arrangements, let alone any published policy applicable to such a case, the Commissioner cannot justify the retention of the images and personal details.” [20]

The Supreme Court appeal

The Appeal will be heard this week between 2nd-4th December with judgment expected in the new year. As already mentioned this is the first time the Supreme Court has ruled on the surveillance of political activists through use of forward intelligence teams and the national domestic extremism database, so will set a crucial precedent. The Network for Police Monitoring have also intervened as an interested party in the case and will be making submissions. Keep an eye out for live tweets from the Supreme Court!

]]>https://lawiswar.wordpress.com/2014/12/01/fits-domestic-extremism-privacy-rights-the-law-so-far/feed/4jagb88Why the Tories can’t be trusted on freedom of expression or privacyhttps://lawiswar.wordpress.com/2014/11/12/why-the-tories-cant-be-trusted-on-freedom-of-expression-or-privacy/
https://lawiswar.wordpress.com/2014/11/12/why-the-tories-cant-be-trusted-on-freedom-of-expression-or-privacy/#commentsWed, 12 Nov 2014 15:36:40 +0000http://lawiswar.wordpress.com/?p=260]]>With last month’s announcement that a majority Conservative Government would repeal the Human Rights Act, replace it with a ‘British Bill of Rights’, and in all likeliness withdraw from the European Convention on Human Rights, the future of human rights protection in the UK has been thrown into some uncertainty.

Ironically – and as if to underscore the need for a robust legal framework which protects human rights – almost immediately after the announcement came a number of embarrassing revelations: it has emerged that police have routinely misused their powers under RIPA to identify journalists’ sources. The government have also been forced to admit in court that legally privileged communications between individuals taking legal action against the state and their lawyers are ‘fair game’ for interception and surveillance by the intelligence services. Yesterday Justice Secretary Chris Grayling admitted that phonecalls between prisoners and their MPs have been monitored by prison staff. And a day before the human rights proposals were revealed came the announcement that a Conservative Government would seek to impose ‘Extremism Disruption Orders’ against those engaged in extremism, which would severely limit the public communications of those subject to them.

These issues raise significant concerns for freedom of expression and privacy, and politicians are not blind to this. Yesterday’s speech by Secretary of State for Culture, Media and Sport Sajid Javid was obviously intended to curry favour with journalists, but was filled with predictable conservative rhetoric on human rights. Notably, he announced that the Tories intend to strengthen and consolidate freedom of the press in their Bill of Rights, arguing that the ECHR and Human Rights Act ‘do not go far enough’ in doing so. This is a disingenuous and hollow promise; this blog post aims to set out why the right to freedom of expression will on the whole be far worse off under a Tory Bill of Rights.

Repealing the Human Rights Act

First a recap of the Tory proposals to repeal the Human Rights Act. The proposal document can be read here – predictably, it is driven by a malicious ideological contempt for human rights, relies on the ignorance perpetuated by certain sections of the media, and despite having been allegedly OK’ed by “QC level lawyers” is just plain wrong on a number of crucial but basic issues (for example, claiming that Strasbourg decisions set a precedent which English Courts must follow). I will not be dealing comprehensively with every possible criticism of the proposals– others have already done this and far better than I could – (I would recommend the following by Conor Gearty, Carl Gardner, Liberty, Francis FitzGibbon.)Instead I want to deal with three central points, upon which the proposals are based, and why they are utterly flawed.

1. “The European Convention of Human Rights is sound in principle but the Human Rights Act has gone too far, getting involved in situations it wasn’t meant to.”

The Tories have claimed that they believe the Convention itself and the rights it enshrines are sound in principle, (the Bill of Rights will supposedly respect the intentions and spirit of the Convention rights by writing those rights directly into English law.) Instead they claim it is “Labour’s Human Rights Act” which has overstepped the mark, allowing judges to invoke human rights law in issues where they should not be.

This is a ridiculous argument. The Convention is treated by judges as a ‘living instrument’, meaning that the rights are interpreted within the context of the day, rather than it being frozen in time in 1950 when it was drafted. It is this that ‘future proofs’ it, allowing it to remain relevant and to provide protection to individuals. Can it seriously be suggested that the Convention should have no application in cases concerning, for example, the retention of DNA – simply because it is a practice that would have been entirely unheard of in 1950? If that were the case we would not have had decisions such as S & Marper v UK – which declared unlawful the indefinite retention of DNA samples by police of individuals who had not been convicted of any offences. In the context of freedom of expression, should human rights law be disapplied in any cases involving the internet – simply because it hadn’t been invented in the 50s?

2. “Human Rights should only apply in ‘serious’ and not ‘trivial’ cases”

The proposals state that claimants will only be able to invoke human rights in ‘serious’ cases, and will not be available at all in ‘trivial’ ones. Who is the arbiter of seriousness in this context? The Conservatives will undoubtedly try to give this decision to a Secretary of State rather than a Judge. Judges are far more likely to make reasoned, rational decisions- politicians merely make political ones. A bill of rights is guaranteed to be tainted by the political flavour of the government of the day, meaning that value judgements will be made. When can a claim in which human rights are at stake be said to be trivial? Deportation proceedings which will separate children from their parents? Extraditions which will lead to torture? An invasion of privacy through surveillance? Censorship of political speech which curtails freedom of expression? Race or sex discrimination? These all sound serious enough to me but those with a political agenda will inevitably have different ideas.

3. “Human Rights should come with responsibilities”

Incredibly, the Tories plan to further limit the application of human rights by introducing a requirement that an individual must be deemed to have fulfilled his/her ‘responsibilities to society’ in order to benefit from the protection of their human rights. This is perverse, and quite how the Tories can claim to be ‘respecting the spirit of the Convention’ whilst introducing this requirement is beyond belief. The whole point of human rights is that individuals are granted them simply by virtue of being human –any requirement that they must come ‘with clean hands’ would deprive marginalised groups of their rights. The proposals ignore the obvious fact that most Convention rights are already qualified – ie they can be lawfully interfered with in pursuit of a lawful purpose such as the prevention of crime or the protection of the rights of others. It is not difficult to envision who could be deemed to have not fulfilled their responsibilities – those who are in prison, are in the country illegally (including asylum seekers), and in the context of freedom of expression, those who have blown the whistle on wrongdoing of an employer, or find themselves arrested for participating in a political demonstration could all be deprived of their rights entirely. Again this would be subject to the whims of the government of the day.

Strengthening freedom of the press?

While politicians laud the role played by journalists and the virtues of a free press in theory, the reality is often quite different, particularly when there is political embarrassment at stake. The Government did not commend the hard work of Guardian journalists who reported the Snowden revelations – in fact David Cameron accused them of lacking ‘social responsibility’ and threatened them with injunctions and ‘tougher measures’. The Snowden scandal is easily one of the most politically significant events of our time – but would its reporting be protected by a Tory Bill of Rights? Or excluded from its protection for being irresponsible?

Freedom of the press is one aspect of the wider right to freedom of expression – which encompasses the right to receive information as well as to impart it. (See this from Liberty on how the press have successfully used article 10.) By attempting to separate the two and drawing ‘freedom of the press’ as a distinct, prescribed concept the Conservatives will create a two-tier system, in which only journalism of which the state approves will be given protection. It is not just ‘journalism’ in the traditional sense that requires protection but the rights of everyone to express opinions. The suggestion that this system would provide for better protection of freedom of expression is ridiculous, and the Conservatives’ own proposed extremism disruption orders illustrates this perfectly.

Extremism Disruption Orders

Theresa May announced that a Conservative-majority government would introduce these measures against those who have been deemed to be involved in ‘extremism’, and would impose conditions such as a requirement that all social media posts are pre-screened for extremist messages, and media appearances, lectures and attendance at protests are restricted/prohibited.

Crucially, the orders will target individuals whose speech has not crossed the threshold into criminal offence territory. Instead they will aim to prevent “harmful activities” which may include a risk of public disorder, harassment alarm or distress, or a “threat to the functioning of democracy”. This is a ridiculously nebulous threshold, which would extend far beyond the ‘hate preachers’ many will be mindful of in light of what is currently happening in Iraq and Syria. Instead the law could easily catch activists and campaign groups. Groups like Occupy or UK Uncut, using twitter to call for an occupation or public protest in aid of issues such as economic inequality could easily be said to present a risk to public order, subjecting them to censorship by police.

This is not simply alarmism about mission creep that will not actually happen. David Cameron has declared that a Conservative government would look at “the full spectrum of extremism” rather than just the “hard end”. What he means by this will be all too obvious to anyone who follows developments in protest law in the UK. Political protestors and activists are routinely labelled ‘domestic extremists’ by police, and this summer we witnessed counter-terrorism police explicitly extend the remit of the Prevent strategy to student activism. Indeed EDOs will form part of the very same Prevent strategy.

The proposals are certainly alarming, but when taken with the Tory plans for human rights – which could in practical terms dismantle the right to freedom of expression entirely, they are outrageous.

If EDOs were introduced today under the current human rights framework, a court would be required by s.6 Human Rights Act 1998 to consider the impact of the order on the subject’s human rights – including freedom of expression under Art.10. This right can, of course, be interfered with lawfully – and the court would therefore have to give careful consideration to the exercise of the subject’s rights, and the merits of curtailing those rights for the purposes of national security, public safety, the prevention of disorder/crime, and the protection of the rights of others. The government would have to show that the restriction on the subject’s freedom of expression is prescribed by law, necessary and proportionate. This is (at least in theory) a sensible approach which attempts to give due regard to all relevant factors.

However, without the Human Rights Act the court would not be required to undertake any such balancing exercise. In fact, under a Conservative Bill of Rights, the subject may forfeit his/her freedom of expression altogether – the case may be deemed ‘trivial’ by a government minister; or the subject may be deemed to have failed in his/her responsibilities to society.

Conclusion: a dilution of human rights

It is clear then that despite airy promises about press freedom, freedom of expression will be far worse off under a Conservative Bill of Rights. The Conservatives should not be trusted – any bill of rights would weaken human rights rather than strengthen them, and they are playing a disingenuous sleight of hand by claiming that breaches of human rights such as the police’s abuse of RIPA powers indicate that repeal of the Human Rights Act is what is needed.

Javid’s comments on the right to privacy under article 8 are also rather telling:

“Article Eight, protecting the right to privacy, was created to fend off the threat of secret police conducting arbitrary searches for totalitarian regimes.

But in 2014 it is little more than an excuse for well-paid lawyers to hide the shady pasts of wealthy businessmen and the sexual indiscretions of sporting celebrities”.

This demonstrates a woeful disregard for (and/or perhaps ignorance of) how article 8 operates. It is a powerful defence against intrusion by the state as well as the press, and his reference to ‘secret police’ is rather ironic. As mentioned above it has been used to successfully challenge the indefinite retention of the DNA of innocent people by police. It has been used to challenge the police’s retention of photographs and personal information on political protestors who have committed no crime. It is currently being used to challenge GCHQ’s mass surveillance of the internet, and to hold to account undercover police officers that tricked women into long-term sexual relationships. It would be extremely convenient for the state if article 8 rights were to disappear.

The Conservatives are not interested in strengthening human rights, only destroying them.